Saturday, August 08, 2015

Yesterday the U.S. 2nd Circuit Court of Appeals joined six other Circuits in upholding the Obama Administration’s accommodation for religious non-profits that object to the requirement under the Affordable Care Act to furnish their employees health insurance that includes contraceptive coverage. In Catholic Health Care System v. Burwell, (2d Cir., Aug. 7, 2015), the court rejected plaintiffs’ RFRA challenges, holding that it must apply an objective test in deciding whether a “substantial burden” has been place on plaintiffs’ religious exercise. It is not enough that plaintiffs sincerely believe that a substantial burden has been imposed. It is up to the court to determine the magnitude of the burden. The court said in part:

Plaintiffs ... argue that the objectively insubstantial burden of filing either the opt-out form or the letter to HHS is substantial because it renders them complicit in bringing about consequences forbidden by their religion, namely the provision of contraceptive coverage by the government and third parties. Although third parties ultimately bear the burden of providing contraceptive coverage, Plaintiffs contend that their participation is essential to this coverage…..

When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a “trigger,” but rather as a means of identifying and exempting those employers with religious objections. Once Plaintiffs indicate their desire to have no involvement in the provision of contraceptive coverage, the government steps in and acts to ensure contraceptive coverage without any participation by Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate 3 contraceptive coverage; rather this coverage happens in spite of them....

Plaintiffs may certainly object to this subsequent action by the government and third parties based on their sincere religious beliefs, and we reiterate that we do not doubt the sincerity or rationality of Plaintiffs’ beliefs. But just because Plaintiffs feel complicit in these third party actions does not mean that the regulations impose a “burden” on their religious practice, much less a burden that is “substantial” under RFRA. While a plaintiff’s “religious views may not accept [the] distinction between individual and governmental conduct,” the law does.